What is a breach?
A breach occurs when the law is not upheld; when:
- an action is taken that places a person at risk of injury, illness or death
- steps are not taken to avoid a risky situation from occurring
- there is a failure to comply with regulatory requirements.
Examples of breaches
Examples of breaches of the WHS Act include:
- exposing workers to the risk of excessive noise
- working at heights where the risk of falling is not controlled
- allowing unlicensed operators to use specified equipment such as forklifts
- not ensuring that plant is appropriately guarded to eliminate or minimise exposure of workers to moving parts
- failing to have in place safe work method statements for work carried out in or near a confined space
- not notifying the Office of Industrial Relations (OIR) when a notifiable serious injury or illness occurs at your workplace.
Examples of breaches of the ES Act include:
- performing unlicensed electrical work
- carrying out electrical work on energized electrical equipment when not permitted
- allowing unlicensed operators to use specified equipment such as forklifts
- not testing electrical work to ensure it is electrically safe
- not notifying the OIR of a serious electrical incident (SEI) or dangerous electrical event (DEE).
Categories of offences
There are four categories of offences for failing to comply with a health and safety duty under the WHS Act and SRWA Act or an electrical safety duty under the ES Act, depending on the degree of seriousness or liability involved.
Industrial manslaughter: the highest penalty under either the WHS Act, SRWA Act or the ES Act is for industrial manslaughter where a person conducting a business or undertaking (PCBU), or a senior officer, negligently causes the death of a worker.
Where a PCBU, or senior officer, commits industrial manslaughter, a maximum penalty of 20 years imprisonment for an individual, or $10M for a body corporate, applies. View more information and definitions.
Category 1: the next highest penalty under either the WHS Act or the ES Act is for a category 1 offence. These are serious breaches where a duty holder who recklessly endangers a person to risk of death or serious injury. Offences involving reckless conduct, will be prosecuted in the District Court.
- Corporation: up to $3 million
- Individual as a person conducting a business or undertaking (PCBU) or an officer: up to $600,000 / 5 years jail
- Individual e.g. worker: up to $300,000/ 5 years jail.
Category 2: failure to comply with a health and safety duty or electrical safety duty that exposes a person to risk of death, serious injury or illness. Offences will be prosecuted in the Magistrates Court.
- Corporation: up to $1.5 million
- Individual as a PCBU or an officer: up to $300,000
- Individual e.g. worker: up to $150,000.
Category 3: failure to comply with a health and safety duty or electrical safety duty. Offences will be prosecuted in the Magistrates Court.
- Corporation: up to $500,000
- Individual as a PCBU or an officer: up to $100,000
- Individual e.g. worker: up to $50,000.
Note: Appeals in Category 1, Category 2 or Category 3 are made to the District Court..
Infringement notices (on the spot fines) are issued under the State Penalties Enforcement Act 1999 and may be issued by an inspector if they believe, on reasonable grounds, that a person is committing or has committed an infringement notice offence under the legislation. Infringement notices may be issued to an organisation, individual or both.
An on-the-spot fine is an alternative to prosecuting alleged offenders directly through the court. It is also called an infringement notice.
Fines for infringement notice offences range from $144 - $720 for individuals, and $720 - $3600 for a business.
There are currently 240 infringement notice offences for contraventions of the WHS and ES legislation. The regulator has identified a smaller number as priority areas for enforcement and if an inspector identifies a contravention of a provision determined by the regulator to be a priority, the inspector will issue an infringement notice. The provisions determined as a priority by the regulator will change periodically to reflect current and emerging risks.
Priority infringeable offences
The following offences are priorities for our inspectors:
- Non-compliance with an Improvement Notice
- The person must comply within the period stated on the notice - WHS Act s.193
- The person must comply within the period stated on the notice - ES Act s.146B
- Incident Notification and Reporting
- PCBU must keep record of each notifiable incident for 5 years after notification - WHS Act s.38(7)
- PCBU must keep a record of each serious electrical incident or dangerous electrical event for at least 5 years after notification - ES Reg s.265(6)
- Consultation with workers
- PCBU must allow adequate time for HSR to exercise powers/functions - WHS Act s.70(2)
- Safety Management – construction projects
- Safe Work Method Statements (high risk construction work) - WHS Reg s.299(1); s.300(1); s.300(2); s.301; s.302; s.303(3); s.312
- WHS management plan must be accessible - WHS Reg s.313(3)
- Provision of hygienic, safe and serviceable amenities - WHS Reg s.315A(2)
- Construction Work
- Trenching/excavation - WHS Reg s.304(3); s.304(5); s.306(1)
- Fall arrest system as control measure - WHS Reg s.306I(7)
- Ladder safety - WHS Reg s.306K(2); s.306L(3); s.306O(5)
- Scaffolding - WHS Reg s.306P(2); s.306Q(2)
- Falling objects - WHS Reg s.315F(3); s.315G(3); s.315L(3)
- General construction induction training - WHS Reg s.316
- General workplace management
- Air monitoring for airborne contaminants - WHS Reg s.50(1)
- Specific Hazardous Work
- Overhead or underground electric line (safe distance) - ES Reg s.68(1); s.68(2)
- Confined spaces - WHS Reg s.66(2); s.69
- General diving work competency - WHS Reg s.175(1)
- Hazardous chemicals register – WHS Reg s.346(1); s.346(3)
- Asbestos management - WHS Reg s.425(1); s.449; s.419(1); s.446(1); s.446(3)
- Licensed High Risk Work
- Written evidence of licence, training, application or certification - WHS Reg s.85(1); s.85(2); s.85(3)
- Electrical Work
- Electrical work - ES Reg 14; 15(1); 26(2); 31(1); 32(1)
- Electrical installations - ES Reg 70; 71; 85(2)
- Electrical supply - ES Reg 221(1); 221(2); 227(1)
- Electrical Licences
- Unlicensed electrical work - ES Act 55(1); 56(1); 57(1)
The fine may be paid in full within 28 days or an application can be made for a payment plan if the fine is over $200.
Payments can be made by:
- mail – return a copy of the notice with your payment (cheque or money order)
Cheques or money orders are to be made out to:
Office of Industrial Relations
PO Box 820
Lutwyche QLD 4030
- phone – call 1300 362 128 and reference the infringement notice number (credit card only).
The alleged offender can choose to contest the infringement notice in a Magistrates Court.
Failure to pay
Not paying the fine can lead to further enforcement action. The infringement notice may be referred to the State Penalties and Enforcement Registry to take further action including:
- redirection of wages or funds from a bank account
- issuing of a warrant for the seizure and sale of property
- suspension of the debtor's driver's licence until the debt is satisfied
- registration of the debt for enforcement interstate
- issuing an arrest and imprisonment warrant.
- Last updated
- 17 October 2019
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